TALE OF CONTENTS

INTRODUCTION.........................................................................................................................3
AUTHORSHIP AND ORPHAN WORKS IN COPYRIGHT...................................................5
ORPHAN WORKS UNDER EU LEGISLATIVE.....................................................................8
POSSIBLE SOLUTIONS TO ORPHAN WORKS PROBLEMS...........................................11
CHANGING INFORMATION CREATION AND STORAGE PRACTICES.....................13

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Abstract
Orphan works, copyrighted materials whose owners are difficult or impossible to identify or
locate, present a significant challenge to the cultural heritage and creative industries. The
existing legal framework often hinders the use and dissemination of these works, stifling cultural
preservation and innovation.
The two major changes in copyright law that occurred throughout the 20th century are the main
causes of the orphan works dilemma. First, the elimination of legal prerequisites and registries
for copyright acquisition subsequent to the Bern Convention. Second, the lengthening of the
copyright significantly. For example, throughout the past century, copyright in the UK has been
extended from 14 to 70 years after the author's death. Only works made before 1923 have
become public domain in the US, and no works produced after 1923 will do so until 2019. This
is because of the existing rule. These modifications have increased protection and incentives for
authors, but they have also made it more difficult for the public to monitor and use copyrighted
works, which has made the issue of orphan works worse.
Through an analysis of the relationship between private ordering and orphan works, this
research paper advances our knowledge of how digital age stakeholders are navigating the
complexities of copyright law. It additionally highlights how private ordering can be an effective
strategy for resolving issues raised by orphan works, ultimately promoting greater access to our
creative and cultural heritage while upholding the fundamentals of intellectual property
protection.

INTRODUCTION
The creation, accessibility, and sharing of information and creative content have undergone an
unparalleled transformation with the advent of the digital era. This change has improved
communication between people all over the world and allowed knowledge and culture to spread,
but it has also created a challenging issue known as "orphan works.1" These works pose a serious
threat to copyright law and intellectual property management in the twenty-first century since
their copyright owners are either unidentified or hard to find.

1 World Intellectual Property Organization; Orphan Works. WIPO. (n.d.).

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A potential user is faced with a difficult decision when the rights holder cannot be located, even
after conducting a reasonably thorough search: either reuse the work and run the danger of being
sued for infringement, or give up on using it. In the latter case, a worthwhile and advantageous
application of the work is obstructed. The public is not served by this, as is evident from the fact
that, if the rights holder were located, they would not object to the usage of their creation.
The actual scope of the orphan works issue in terms of the economy and society is still unknown.
The difficulties in identifying right holders were asked about in European Union discussions
regarding the audiovisual sector and the digital libraries program, but no specific quantitative
data surfaced. While some estimates put the possibility of over 40% of creative works being
orphaned, there is little evidence to support this theory. The consultations did highlight the fact
that the issue is seen as a real concern, particularly by cultural and audiovisual institutions, but
no hard evidence was given regarding the frequency with which orphan works impede creative
initiatives or their practical application.

A vast array of artistic and cultural products, including books, music, films, and photographs, are
considered orphan works. However, because of their ambiguous copyright status, their use is
restricted, which has an impact on historical study, creative innovation, and cultural preservation.
The stringent criteria and extended protection periods of traditional copyright rules make them
inadequate for managing orphan works in the digital era.
As a result, parties involved in the creative sector, libraries, archives, and museums are resorting
to "private ordering2." This entails their joint development of policies and procedures to resolve
legal ambiguities and facilitate the better administration and utilization of orphan works.A vast
array of artistic and cultural products, including books, music, films, and photographs, are
considered orphan works. However, because of their ambiguous copyright status, their use is
restricted, which has an impact on historical study, creative innovation, and cultural preservation.
The stringent criteria and extended protection periods of traditional copyright rules make them
inadequate for managing orphan works in the digital era.3

2 Keith Porcaro, Private Ordering and Orphan Works: Our Least Worst Hope?; Duke Law
3 Eric J. Schwartz, Matt Williams, Cinema Journal; Access to Orphan Works: Copyright Law, Preservation, and
Politics,Vol. 46, No. 2 (JSTOR)

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This research paper aims to provide light on how the creative and cultural community is tackling
the issues given by orphan works in the digital era by exploring the changing landscape of
private ordering, evaluating its efficacy, and exploring the legal, ethical, and economic
ramifications.
Furthermore, this research paper also explores laws and directives from the European Union
(EU) concerning orphan works. The impact of digitisation on orphan works is then examined.
Furthermore, the study looks at the causes of the rise of orphan works and considers possible
remedies for this problem. Lastly, it analyzes the evolving practices of information creation and
storage.

AUTHORSHIP AND ORPHAN WORKS IN COPYRIGHT

One kind of intellectual property right that safeguards a person's original works is copyright.
Design, trademark, and patent rights are examples of further intellectual property rights.
Worldwide recognition of intellectual property rights has led to some of them being accepted as
fundamental rights.
Copyright allows for a variety of creative expressions by specifically protecting the expression of
an idea rather than the idea itself. It can be used with creative works ( such as paintings and
sculptures), musical works (similar to recordings and notes), literary works (like newspapers and
books), and more.
Since copyright can be bought, sold, transferred, and licensed, these rights are comparable to
rights over tangible property4. Copyright law is distinct, nevertheless, in that it incorporates the
notion of authorship, which is acknowledged globally. There are two primary rights associated
with copyright: economic rights, which enable people to make money off of their inventions, and
moral rights, which acknowledge the author and give them authority over uses of their works that
are not for profit.
Two separate categories of moral rights are established by the US Copyright Act5 and are
recognized by other national laws worldwide. These are the rights to paternity (or, in certain
cases, attribution, depending on the legal system) and integrity.

4 Maurizio Borghi and Stavroula Karapapa. (n.d.). Orphan Works: Copyright and Mass Digitization.
Academic.oup.com. https://academic.oup.com/book/8913/chapter/155188649
5 Office, U. S. C. (n.d.). Copyright law of the United States (title 17) and related laws contained in title 17 of the
United States code. Copyright Law of the United States | U.S. Copyright Office.

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As the name suggests, the right of paternity recognizes the original author as the sole creator and
parent of their creative work. Under the paternity right, the author is acknowledged as the work's
original creator even if another party purchases the economic rights through the sale of
copyright.
The author's right to integrity gives them the ability to defend their creations against acts that
could tarnish or undermine its integrity. This means that the author has the right to stop such
misuse of their creative work if they think the copyright owner's activities could damage the
original work or jeopardize the author's aesthetic vision. Crucially, moral rights function apart
from the financial rights related to intellectual content ownership or licensing.

In India, moral rights are a crucial component of copyright protection. The Indian Copyright Act,
1957, Section 576, protects authors' moral rights in accordance with Article 6bis of the Berne
Convention7. The Amar Nath Sehgal Vs. Union of India8 case, also referred to as the mural case,
is a noteworthy instance that highlights moral rights in India. In this instance, the Indian court
supported the inventor, well-known sculptor and artist Amar Nath Sehgal,'s moral right to
integrity. He was hired to paint a mural for Vigyan Bhavan, but his creation was taken down and
stored without permission.
The court determined that moral rights are the fundamental component of an author's work,
highlighting the special relationship between the creator and their invention, in response to a
petition brought by Amar Nath Sehgal under Section 57 of the Copyright Act9. The court also
upheld the author's moral right, which endures even after ownership is transferred to the
government. Amar Nath Sehgal was consequently given damages for the infringement of his
right to integrity.

Orphan works pose a unique challenge when it comes to their connection with moral rights
because these works lack identifiable creators. Orphan works are artistic creations that are
copyright protected but whose owners, despite extensive searches, cannot be found. Orphan

6 The Indian Copyright Act, 1957, No. 195714, Section 57, Acts of Parliament, 1947(India).
7 Berne Convention, 1886, Art 6bis, 828, U.N.T.S. 81
8 Amar Nath Sehgal Vs. Union of India (2005), 117 (2005) DLT 717
9 ibid, 6

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works are copyrighted works, such as journals, pictures, movies, or music, when one or more
right holders are either unidentified or cannot be located, according to the UK's Intellectual
Property Office.

Say Kin first used the phrase "orphan works' ' in a 1993 conversation about film preservation.
For organizations like libraries, museums, archives, and galleries, these pieces pose a serious
challenge as they move toward digital collections. Without identifying the copyright owner,
digitizing orphan works runs the danger of being sued for copyright infringement, which might
include moral rights violations like the right to integrity or paternity. But if they aren't digitized,
important content will be lost, and public access will be restricted.
Creative works with copyright protection can sometimes become orphaned because of things like
the right holder's ignorance of their moral rights, the difficulty of establishing inheritance after
the author's death, and the difficulty of identifying the author even after a great deal of
investigation. Orphan works are becoming more common, in part because many governments do
not require registration.

When creative content is produced informally or cooperatively, as is frequent in the current

digital era with an abundance of content output, orphan works are produced. This frequently
happens in online collaborative environments like wikis, blogs, and web pages. It can be difficult
to find these contributors because of the broad and ever-expanding internet realm. Finding the
actual creator of an orphan work needs a significant time, effort, and often financial expenditure
in order to use it without violating copyright. Finding the author can be an expensive and time-
consuming effort that doesn't always work.
Potential users of orphan works run the risk of suffering financial losses despite conducting
thorough searches since they could be subject to damages or injunctions should the author decide
to assert their rights. Using orphan works is discouraged by this liability associated with
searches. Orphan works are frequently avoided by authors, artists, academics, and producers,
even in cases where the copyright holder is unlikely to exist or would oppose wider use.
Historians studying historic images or scripts, for instance, may encounter challenges because of
orphan works, especially at collections such as the British Library.

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Thousands of historically significant images of British soldiers from both World Wars might be
found in the British Library, one of the biggest in the world.
However because the proprietors could not be found, these pictures could not be digitalized.
Both users and owners suffered as a result; users lost the opportunity to invent new ideas and
benefit from them, and owners lost out on possible licensing revenue. The issue of orphan works
is one that is always expanding, and the lack of precise data makes it difficult to assess.
Governments and cultural institutions all throughout the world acknowledge orphan works as a
serious problem. As an example, the British Library calculates that more than 40% of its
published works are lost or abandoned. This problem continues because new digital orphan
works are constantly being created online, while copyrighted works are progressively becoming
orphaned.

The UK's 1710 Statute of Anne of Copyright10 was the first copyright law to be recognized
worldwide. Only those who registered their artistic creations at Stationers' Hall under the
supervision of the guild of stationers were awarded copyright protection back then. This implied
that there was no automatic copyright protection as it exists now. However, by the early 20th
century, automatic copyright protection had been widely recognized when the need for formal
registration to secure copyrights was eliminated on a global scale.

ORPHAN WORKS UNDER EU LEGISLATIVE

European Union orphan works have a history that dates back to 2005, when Europeana, an
online digital library, was established. Europeana seeks to enable online exploration of European
cultural legacy by giving the public access to a variety of digitized cultural assets, such as books,
articles, films, and more.

The European Commission suggested in 2006 that EU member states create lists of known
orphan works and implement a licensing system for orphan works.11 As a result, the High-Level

10 The statute of anne: The first copyright statute. The Statute of Anne: The First Copyright Statute : History of
Information. (n.d.).
11 Networks, D.-G. for C., Milieu, McGuinn, Sproģe, Omersa, Borrett, Borghi, & Guibault. (1970, January 1).
Study on the application of the Orphan Works Directive (2012/28/EU). Publications Office of the EU.

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Expert Group on Digital Libraries was established to address problems pertaining to digitization
and internet access, especially orphan works.

The European Commission acknowledged cross-border issues with orphan works by 2008.
The 2008 Green Paper on 'Copyright in the Knowledge Economy12' emphasized the need to share
valuable educational, historical, and cultural works online. Consultations revealed a divide
between those advocating EU-wide legislation for orphan works, such as universities, libraries,
and Google, and copyright holders favoring the existing system and licensing arrangements.
Copyright holders emphasized the importance of diligent searches for copyright owners using
databases like ARROW in cases of orphan works. In response, the European Commission
committed to an impact assessment in the following year to address the orphan works issue.

A 'Directive of the European Parliament and of the Council' was suggested by the European
Commission in 2011 to address the problem of orphan works and streamline their use. The goal
of this directive was to provide a mutual recognition of orphan work status among Member
States and a uniform, attentive search procedure. Following a number of revisions, the EU
adopted Directive 2012/28/EU on October 25, 2012,13 and mandated that Member States
harmonize their legal frameworks with it by October 29, 2014.

This directive's main objective is to establish a solid legal foundation for the distribution and
digitization of orphan works. In addition to helping cultural heritage organizations preserve
large-scale digital collections and archives, this also helps to promote and preserve European
cultural heritage. These groups contend that because of possible liability and unpredictability in
the financial process, the directive, while useful for digitizing small-scale collections, does not
encourage the digitization of bigger and more diverse collections. The requirement of cultural
organizations to pay copyright holders who reappear for all earlier uses of a work that was
previously deemed orphaned—even in cases where a thorough search was carried out—is
especially concerning. The directive does, however, give Member States the authority to set the
terms and timing for these payments.
12 Commission, E. (2008, July 16). Green Paper - copyright in the knowledge economy. Publications Office of the
EU.
13 Lex - 32012L0028 - en - EUR-lex. EUR. (n.d.). https://eur-lex.europa.eu/legal-content/EN/TXT/?uri=celex
%3A32012L0028

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CAUSES OF ORPHAN WORK EMERGENCE
In order to use works of the authors who are not well known, and using the work of the authors
who are well known will require the consent of the rights holder. However, it is important to note
that due to the data missing about an author and a rights holder, it is not possible to obtain
permission from them.14 Identification or locating a rights holder, when an exclusive copyright
still exists and the copyright protection has still not expired, is difficult. There is also a high
chance of being sued when the copyright protection has not expired. It is likely that the rights
holder will file the law suit and this will lead to the fact that the authors avoid to use the works of
the works of the authors that are unknown.15 Such actions violate the copyright laws, even if such
probability is insignificant.

Scholars across various fields have defined orphan works as works in which the copyright
holders are not identified, and there is no information about the rights holder location despite
there being diligent searches, reasonable and sufficient measures to identify the copyright
holders of the work.16 A majority of the orphan works are reported to be a significant part of the
archives not only in the libraries, but also in various other arenas such as film funds, and
museums. In the British Library it was found that over 40% of the works had funded the
copyrighted works. Approximately 150 million authors were unknown, and it was observed that
most of the works did not have any commercial value but the works had value of education and
culture.17

There are several factors that contribute to the rise of the orphan works, these include:

Firstly, the data about the author of the work which was lost, if the works is existing in a single
copy and the data is lost due to the cause of negligence of the cultural institute by way of
inappropriate or faulty storage.18 The original work is lost, even though there is a copy of the

14 David Hansen, Orphan Works: Causes of the Problem (2012).

15 Proliferation of the problem of orphan works across the world - Ahmed - 2019 - The Journal of World
Intellectual Property - Wiley Online Library, https://onlinelibrary.wiley.com/doi/abs/10.1111/jwip.12135 (last
visited Oct 17, 2023).
16 Bzhar Abdullah Ahmed, The Situation of Orphan Works under Different Jurisdictions, 20.
17 Digitisation of British Newspapers 1800-1900 | Ed King, https://www.gale.com/intl/essays/ed-king-digitisation-
of-british-newspapers-1800-1900 (last visited Oct 17, 2023).
18 Nirajan Man Singh, Factors Contributing to Orphan Works Vis-À-Vis a Viable Solution, (2011),
https://papers.ssrn.com/abstract=1916810 (last visited Oct 17, 2023).

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work is used there is no citation of the specified author. This usually happens when the work is
copied on the internet. Secondly, another cause of orphan emergence is when there is a
negligence of authors to their own copyrights and the object of their creativity. 19 Thirdly, many a
large number of authors who co-author works do not know each other, and this is contributed to
using the internet- with websites such as Wikipedia and open-source software’s. Under these
conditions it is difficult to know what is the name of the authors, and to establish a clear criterion
for the authorship for the co-authors.20

The problem of orphan works and the prevention of its occurrence in the future is supposed to be
solved by providing a mandatory registration of the copyright works, however in copyright laws
of countries there are provisions to provide protection of the works without any formalities.

POSSIBLE SOLUTIONS TO ORPHAN WORKS PROBLEMS

Before understanding the possible solutions to the orphan works it is imperative that we delve
into the failure of private ordering in the orphan works. Firstly, when understanding the nature of
the work- a third party exploitation of the exclusive rights under the copyright will require the
copyright owner’s authorization unless there is copyright limitation or an exception such as fair
use that applies. The exploiters who are about to exploit will not qualify for a limitation or an
exception but those who are unable to locate the copyright owner must also decide whether to
renounce their projects or possibly face the risk of the copyright owner appearing once the
exploitation is underway and they demand that there should be a relief in terms of both injunctive
and monetary relief whilst ensuing an infringement action. There are frustrated users such as the
commercial entities, who seek to reissue the “out-of-print” works or create new works that are
based on the orphan works to the cultural institutions such as the museums or libraries which
have the main aim digitizing works for preservation and educational purposes to those
individuals who seek to incorporate an “orphan” work in their webpage or blog. 21 It is important
to note that the intensity of the problem varies with the nature of the work, and in some cases the
chains of the title may be more reliable and prevalent in some sectors. Furthermore, it is likely

19 Id.
20Margaret Wood, Orphan Works and Fair Use in a Digital Age | In Custodia Legis, THE LIBRARY OF CONGRESS
(2012), //blogs.loc.gov/law/2012/02/orphan-works-and-fair-use-in-a-digital-age (last visited Oct 17, 2023).
21 Keith Porcaro, Private Ordering and Orphan Works: Our Least Worst Hope? Copyrights & Trademarks, 9
DUKE L. & TECH. REV. [1] (2010), https://heinonline.org/HOL/P?h=hein.journals/dltr9&i=257 (last visited Oct 17,
2023).

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that the number of unlocatable owners of the currently unexploited works will increase along
with the expanded length of the copyright term- this holds especially true if the rightsholders do
not keep the copyright management information up to date.

When solving the problem of Orphan works there are certain alternatives that can be considered.
Firstly, there can be rights management information – this is because orphan works is an
information problem and the difficulty in locating rights owners are caused by a lack of
metadata. Not every piece of work displays information about its authorship or copyright
ownership, the copyright ownership details on a work can become obsolete when ownership
changes occur and there's a pervasive absence of comprehensive copyright registries or other
publicly accessible documentation. Hence, any progressive approach to addressing the orphan
works issue should incorporate methods that promote the provision of rights management
information (metadata) to the public. If sufficient metadata becomes accessible to the public, it
could reduce the expenses associated with identifying rights holders and thereby streamline the
process of rights clearance.22

Implementing a legal requirement for authors or rights holders to disclose copyright ownership
information would be in conflict with international copyright standards, particularly the Berne
Convention for the protection of literary and artistic works. This would be the case if it made the
existence or exercise of copyright dependent on formal prerequisites. Under the Berne
Convention, apart from specific situations within a single nation, it is forbidden to establish
compulsory registration systems or mandate a copyright notice that includes details about the
copyright owner's identity, location, and copyright date on each copy of the work. However, it is
permissible to put in place measures that encourage rights owners to willingly provide
information about copyright ownership and licensing terms.

Secondly, extended collective licensing should be implemented. Promote the coordinated

administration of copyright for works that are well-suited for digital reuse. The benefit of this
approach is that, due to the centralization of rights holders within a collecting organization,
potential users would encounter fewer challenges when searching for the copyright owner of the
work they wish to utilize. When a collecting society is established and it represents a substantial

22 Kelu L. Sullivan, Orphan Works at the Dawn of Digitization, 18 RICH. J.L. & TECH. 1 (2011),
https://heinonline.org/HOL/P?h=hein.journals/jolt18&i=249 (last visited Oct 17, 2023).

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portion of rights holders in a specific domain, there is a good chance that the society will also
represent the specific copyright owner that the user is seeking.23

Thirdly, implement a compulsory license to use orphan work,24 A more robust method to
establish legal clarity would involve enabling a user to request a license from an administrative
entity for the utilization of a specific work when the identity or location of the rights holder
cannot be determined through reasonable investigation. A model for such a system can be found
in Canada25 (as outlined in Article 77 of the Canadian Copyright Act). In this Canadian
framework, the Canadian Copyright Board must be convinced that the applicant has made
'reasonable efforts' to locate the copyright owner before granting a license. Generally, a user can
seek a license for multiple orphans works through a single application. While it's not mandatory
to have exhausted 'every effort' to trace the rights holder, the applicant needs to demonstrate that
they've conducted a 'thorough search.' To meet this requirement, the Copyright Board advises
applicants to get in touch with various collecting societies and publishing companies, consult
indexes at national libraries, universities, and museums, inspect copyright office registration
systems, explore inheritance records, and perform internet searches.

CHANGING INFORMATION CREATION AND STORAGE PRACTICES

The removal of formal requirements and the extension of copyright durations result in more
works being automatically protected for longer periods, primarily for the benefit of individuals
who may not necessarily wish to own or oversee those rights. In the case of orphan works, this
situation is exacerbated by the fact that advances in new technologies enable the creation,
fixation, and preservation of a greater volume of copyrighted works than ever before. Over the
past two decades, electronic publishing has led to a significant increase in new content. Even in
the traditional realm of book publishing, there has been a remarkable surge in the number of new
titles and editions available, with a considerable portion of this growth attributed to the
publication of e-books. Efforts to assess the overall influence of digital technology on society's

23 Yafit Lev-Aretz, Copyright Lawmaking and Public Choice: From Legislative Battles to Private Ordering, 27
HARV. J. L. & TECH. 203 (2013), https://heinonline.org/HOL/P?h=hein.journals/hjlt27&i=209 (last visited Oct 17,
2023).
24 Wood, supra note 7.
25 Art 77, Canadian Copyright Act.

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collective information output yield similar results. 26 Enhanced storage allows the creators to
manage their works and track their copyright status information.

CONCLUSION

A sophisticated knowledge of moral rights is necessary, as seen by the development of copyright

legislation and the rise of orphan works. Moral rights have significance for identifying and
defending the authenticity and integrity of creative works, but how they should be applied to
orphan works is a complicated matter. Taking into account the moral rights of unidentified or
unlocatable writers complicates the already complex issue of orphan works.
In response to these challenges, legislative initiatives, such as the EU Directive, have attempted
to provide legal frameworks for the use of orphan works. These initiatives do, however, come
with a unique set of issues, including onerous stringent search requirements and possible legal
risk for cultural institutions. Hence, it is still very difficult to strike a compromise between
defending the rights of writers and other creators and enabling access to cultural property.
The issue of orphan works is not only one of copyright but also of cultural preservation,
historical research, and creative innovation in a world where digital proliferation is becoming
more and more prevalent. It demands a careful balance between granting the public access and
upholding the rights of the artists.
Furthermore, attempts to solve the problem of using orphan works are carried out in different
legal systems, however there is no single solution of legalizing the orphan works. The legal
regulation of orphan works should be carried out with experience. The discussions concerning
the creation of a framework to safeguard orphaned works are said to be taking place at the
interstate level. This approach is favored because addressing this issue solely at a national or
regional level would not effectively tackle the challenges posed by cross-border digital content
relationships. Additionally, such a narrow approach would disrupt the conventional system of
exclusive copyright protection. Given the significance of orphaned works and their substantial
societal value, it is imperative to address this issue on a global scale.

The Canadian system of compulsory licensing can be seen as inspiration when looking towards
solving the orphan problem as it provides maximum legal certainty. It is hoped that national

26 Michael B. Abramowicz, Orphan Business Models: Toward a New Form of Intellectual Property, in
PERSPECTIVES ON FINANCING INNOVATION (2014).

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legislatures introduce legislative solutions as the problem of orphan work is becoming more
acute and is threatening to undermine the increase in the digitization projects.

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